Tuesday, July 17th, 2007

District Court’s Application of November 1, 2002, Guidelines Manual Violated Ex Post Facto Clause

United States v. Kilkenny, No. 05-6847-cr (Cardamone, Walker, Straub, CJJ) (2d Cir. July 5, 2007). Here, the district court used the November 1, 2002, version of the Guidelines to sentence the defendant, rejecting his argument that the November 1, 2000, version should be applied instead. the court of appeals rejected district court’s reasons for using the later, and more onerous Guidelines, and remanded the case for resentencing under the 2000 manual.


In September of 2000, the defendant received, a large loan from M&T Bank. However, he had made several false representations about his finances in the loan application, and ultimately defaulted. On May 8, 2002, the bank foreclosed on the loan. The defendant pled guilty to one count of bank fraud – the count alleged that the fraud spanned from “in or about September 2000 through on or about May 8, 2002.”

The defendant also cheated 22 individuals in a Panamanian bond scheme that took place between February 2000 and June 2001 (Count Two) and structured cash deposits on July 24, 2001 (Count Three).

The defendant pled guilty to all three charges in July of 2003, and the court sentenced him, over objection, using the November 1, 2002, Guidelines manual, under which the Guideline range was 188 to 235 months’ imprisonment. The range would have been the same using the November 1, 2001, manual but, with the November 1, 2000, manual, the range would have been 97 to 121 months. The district court ultimately sentenced the defendant to 216 months’ imprisonment, rejecting the argument that the 2000 manual should have been used. It held that (1) “May 8, 2002, is specifically charged in Count One”; (2) “the entire range of conduct” extended “actually even into 2003,” referring specifically to the defendant’s failure to repay the loan; and, (2) the defendant defrauded additional victims “not specifically charged but detailed in the presentence report” after November 1, 2002.

The Appellate Court’s Decision

The court of appeals rejected all of the district court’s reasons for using the later version of the Guidelines. It first held that it was error for the district court to rely on the May 8, 2002, date specified in the bank fraud count as the last date of the bank fraud offense, since all of the defendant’s conduct with respect to the M&T Bank loan took place in 2000. Where a date in the charging instrument “clearly exceeds the offensive conduct” it is “clearly erroneous for a sentencing court to rely on it.”

Next, the Court held that the failure to repay the bank loan in 2002 should not change the result. Ordinarily, the failure to repay a fraudulently obtained bank loan does not constitute bank fraud. Finally, the court held that the district court erred in relying on uncharged conduct. “[U]ncharged conduct occurring after the conduct of conviction cannot be considered when determining which version of the Guidelines to apply.”

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